What Is ElderLaw

Charles Sabatino, Director of the ABA Commission on Law and Aging explains it as follows:

A strong elder law practice requires development of special skills and resources in three areas that go beyond a typical law practice. First is in the special scope of legal issues that characterize a law and aging practice.

I would describe elder law as a kind of expanded estate practice, with special knowledge in the law of Medicare and Medicaid (especially the components of Medicaid that provide benefits for long-term care), plus nursing home resident rights, disability planning issues, guardianship and protective services, elderly housing, special needs trusts and the special ethical issues that arise in serving elders.

Second, expertise needs to be developed in understanding the physical and psycho-social aging process, and the accommodations and skills needed to accommodate differing levels of sensory, physical and cognitive impairment needs of disabled clients. Some elder law lawyers even incorporate social work or geriatric care manager services into their practices.

Third, an elder law practice requires knowledge of and connections to a range of multi-disciplinary resources and collaborators who can help meet a seamless variety of needs of elders that extend well beyond the purely legal. It is not unusual to hear of clients who are most grateful to their lawyer for the referral to a geriatric assessment team that finally identified the real problem causing mom’s functional difficulty, or for the referral to high quality home and community-based resources that they didn’t know existed.

The lawyer’s extensive understanding of the local “aging network” often puts the lawyer at the fulcrum of the client’s planning process. Elder law is often accurately described as a holistic practice of law.

"Walk" by Duane Keiser

Our commitment is to put our client’s interests first. What does that mean? To us it means working with the client as a full partner in developing a planning approach. It means spending the time to figure out what the client really needs and would be happiest with. It means seeking out skilled and trustworthy providers of related services – for example financial advisors or accountants – to have as resources for our clients. But most of all it means service – the kind delivered in person, by a person. We strive to deliver a quality product at a fair price.

Estate planning is complicated for people who have lived for several decades and who have accumulated family, relationships and assets. Today, good estate planning is based on human factors rather than being tax driven. We need to talk about things clients may prefer to ignore – their child’s shortcomings, her personal increasing fragility. We begin with understanding the needs that drive the client in making decisions for his estate plan, and we use our experience to translate those needs into a plan that has the best chance of working.

Clients bring to the table all the wisdom they have earned from living, along with their emotions and biases. Our strategy is to educate the client about the issues we see from the vantage point of our experience in doing this for over twenty years. Then together we come up with a plan that will accomplish the client’s desired result. It takes work, including tackling some tough questions, but the pay off comes when the goal of the plan is realized. The client and his assets are protected, the family and relationships are preserved and costs are minimized.

Waiting to Plan?

In my years of estate and elder planning, clients have presented at various stages of life’s  unfolding: marriage, birth of children, retirement, incapacity, death. Events both welcomed and feared prompt some of us to consult with an advisor. We seek advice and the legal tools that our loved ones need to navigate the passages.  I admire those who have the foresight and the discipline to undertake this. But there are many, many more of us who do not take the step. Most of us, I think, would rather wave off these thoughts and tend to the urgencies of daily life. Life planning- is a chore that seemingly can be postponed until later.  We would rather devote that time and  money to living life than thinking about accidents or other scary prospects.  But if a crisis  happens before  we have gotten  prepared, it is our family who pays the price.A crisis can occur at anytime. Sport­ ing accidents, sudden heart attack, dementia or stroke may all happen to the not so old.

When a Crisis Occurs

The most familiar client comment I hear in an Elder Law conference is “We should have done this years ago”. The problem with waiting until a crisis looms is that it’s often too late. Our options are more restricted. Just ask someone whose family member was admitted to a skilled nursing facility and finds that Medicare will not pay for the services.The questions erupt. Who is in charge? How do they get legal authority to act? How will services be paid for? What and where are the assets?  How do you take care of an elderly parent who remains at home?

What Is Involved in Planning?

What you need is a strategy. You need a plan in order to be able to put the nagging worry away. You can’t see into the future, but you can prepare for the journey. Your journey may be like a trip to Florida in the winter. You pack some light outerwear and probably  a few heavier things in case of freakish weather. Or it may be more like a Himalayan expedition requiring extensive and sophisticated outfitting. Most of us are somewhere  in between.  But here’s  the difficulty:  We do not know which journey will be ours.

My thought is that this old adage holds true in estate and elder planning: “Prepare  for the worst and hope for the best”. Do you buy insurance for your house? Of course. What is the chance that your house will bum down compared to the chance you will need long term care in your home or in a facility in lat­er years? Nursing home costs average about $6,000 to $7,000 a month and can easily wipe out life savings.  I encourage my clients to have a plan for funding long term care, whether it is provided by insurance or savings or Medicaid. For those who don’t have the resources, there are other solutions that must be addressed early on.

This planning is especially  important for women. The statistics show that women are more likely to become a caregiver to a parent or spouse, with the attendant drains on energy, work, finances, and time. And likely a reduced social security benefit.  And a woman is more likely not to have a spouse to rely on for her care.

Whatever your circumstances,  you need these documents at a minimum: Will, Financial Power of Attorney, Health Care Power of Attorney and a HIPAA Waiver. You may need others such as a revocable living trust, life insurance trust, caregiver agreement,  and so on. But the value is not in the document so much as in the strategy (plan). The documents  allow the strategy to be implemented. If you  go to the internet and download “forms”, you may have documents but you don’t  have a plan, or more accurately  you have someone else’s  plan. This is intensely personal planning, and for the present at least, is much better done by a knowledgeable and experienced  human who sits across the table from you than by a computer in the cloud.

Do I Really Need All this Mumbo-Jumbo?

My clients are less than thrilled with the dreaded “legalese” in their documents. I sympathize. And to be honest, I wish I could simplify  my documents,  we would all be happier.   But simpler is not better in most cases. We hope that your planning will turn out to be more than you actually need, like too much luggage. It is a good thing if you don’t need to trigger the planning you’ve  done for nursing home confinement or dementia. Do you consider  your  hazard insurance  premiums a waste of money  if your house doesn’t bum down? If you do need it, this planning can save your life savings,  your family’s  harmony  and  your house. Ask someone who has gone through a health care crisis with elderly parents after having done this type of planning and ask them how valuable it can be.

Published in ALL ABOUT SENIORS Upstate, Winter 2012. Copyright 2012 Carole Spainhour Attorney, all rights reserved.